Retired Officers Ass'n v. Department of Navy

• Decision Date: 12 July 1989
• Docket Number: Civ. A. No. 88-2054.
• Citation: 716 F. Supp. 662
• Parties: The RETIRED OFFICERS ASSOCIATION, Plaintiff, v. DEPARTMENT OF the NAVY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

716 F. Supp. 662

The RETIRED OFFICERS ASSOCIATION, Plaintiff, v. DEPARTMENT OF the NAVY, et al., Defendants.

Civ. A. No. 88-2054.

United States District Court, District of Columbia.

July 12, 1989.

Frank M. Northam, Webster, Chamberlain & Bean, Washington, D.C., for plaintiff.

Carol Koehler Ide and Michael H. Hughes, Office of Information & Privacy, U.S. Dept. of Justice, Washington, D.C., for defendants.

OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

The Court has before it cross-motions for summary judgment in the above-captioned Freedom of Information Act ("FOIA") suit. 5 U.S.C. § 552. There are no material facts in dispute. The bone of contention between the parties is solely over whether the FOIA requires defendants to disclose to plaintiff the names and addresses of retiring and retired officers of the United States Army, Air Force, Navy and Marine Corps.¹ Defendant maintains that the names and addresses of retiring officers are exempt from disclosure pursuant to § 552(b)(2) (internal personnel rules and practices), and that the names and addresses of retired officers are exempt from disclosure pursuant to §§ 552(b)(2) (internal personnel rules and practices) and 552(b)(6) (unwarranted invasion of personal privacy).

Upon consideration of both parties motions, the supporting and opposing legal memoranda, the accompanying affidavits, and the underlying law, the Court concludes that the information at issue does not fall within the ambit of FOIA exemptions 2 or 6. Accordingly, the Court will grant plaintiff's motion for summary judgment, and will deny defendants' motion.

BACKGROUND

Plaintiff is a nonprofit corporation with a membership of approximately 360,000 individuals, which includes regular members and auxiliary members. Any person who is or has been a commissioned or warrant officer in any of the seven Uniformed Services or the Reserves, or other components of these services qualifies to be a regular member; auxiliary membership is available to surviving spouses of regular members and surviving spouses of deceased individuals who would have qualified for regular membership. Plaintiff's "primary missions" are supporting a strong national defense and protecting the earned entitlements of service personnel and their families. Plaintiff endeavors to meet these objectives by lobbying and testifying on proposed and pending legislation that is of concern to service personnel; providing Congress with information pertaining to the needs and interests of members of the uniformed services; preparing publications and mailings that keep members current on legislation, administrative rulings, judicial decisions, and other government pronouncements affecting them, and providing members counselling in a variety of areas such as retirement pay, medical care, survivor benefits, and employment after retirement.

Plaintiff has found mail solicitation to be the most effective means of reaching new members. In the past, the various military departments have provided plaintiff with the names and addresses of retiring and retired officers of the service. In 1987, however, the military departments informed plaintiff that they would no longer provide plaintiff with this information. Plaintiff has tried alternate methods of obtaining lists of the names and addresses of retired and retiring officers of the military; however, these methods have not been successful.

THE REQUESTED INFORMATION DOES NOT RELATE SOLELY TO INTERNAL PERSONNEL RULES OR PRACTICES, AND THE INFORMATION DOES RELATE TO A SIGNIFICANT PUBLIC INTEREST SO EXEMPTION 2 DOES NOT PERMIT IT TO BE WITHHELD.

Exemption 2 of the FOIA allows agencies to withhold from public disclosure matters "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The Court of Appeals for this Circuit set forth the analytical framework for evaluating Exemption 2 claims in Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir. 1983):

First, the material withheld should fall within the terms of the statutory language as a personnel rule or internal practice of the agency. Then, if the material relates to trivial administrative matters of no genuine public interest, exemption would be automatic under the statute. If withholding frustrates legitimate public interest, however, the material should be released unless the government can show that disclosure would risk circumvention of lawful agency regulation.

Id. (citations omitted).

Defendants maintain that the information sought here satisfies Exemption 2's threshold requirement of pertaining solely to an agency "personnel rule or internal practice" because the information was "generated and maintained for the exclusive purpose of supporting and facilitating internal personnel activities of the armed forces."² The reach of Exemption 2, however, is not as broad as defendant suggests. To fall within the ambit of Exemption 2, it is not enough that the requested information be generated and used for the purpose of facilitating matters of internal management. See Army Times Publishing Co. v. Dep't of Army, 684 F.Supp. 720 (D.D.C.1988) (holding that computerized records containing the names, addresses, grade levels and installation location of all active duty Army personnel in the United States which were "generated and maintained for the exclusive purpose of supporting and facilitating internal personnel activities of the Army" were not covered by FOIA Exemption 2). "The phrasing of Exemption 2 is traceable to congressional dissatisfaction with the exemption from disclosure under former § 3 of the Administrative Procedure Act of `any matter relating solely to the internal management of an agency.'" Department of Air Force v. Rose, 425 U.S. 352, 362, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). The legislative history of Exemption 2 "plainly evidences the congressional conclusion that the wording of Exemption 2, `internal personnel rules and practices,' was to have a narrower reach than the Administrative Procedure Act's exemption for `internal management,' matters." Id. at 363, 96 S.Ct. at 1600.

Even assuming the satisfaction of Exemption 2's threshold requirement, defendants would nonetheless be required to disclose to plaintiff the information it is seeking because it is related to significant public interests. The Court disagrees with defendants' depiction of plaintiff's purpose in seeking the requested information as commercial in nature as well as its characterization of the information as involving "`trivial administrative matters of no genuine public interest.'"³

In arguing that plaintiff intends to use the names and addresses it is seeking for a commercial purpose, defendant relies upon Schwaner v. Department of Air Force, 698 F.Supp. 4 (D.D.C.1988). Such reliance is misplaced. In Schwaner, a seller of insurance made a FOIA request to the Air Force for the names and addresses of air base personnel; he intended to use these names to solicit purchasers of insurance. Judge Gerhard Gessell, in upholding the denial of the insurance seller's FOIA request, wrote that "with regard to exemptions from disclosure, Courts rightly distinguish between non-profit institutions which seek to serve the addresses and commercial enterprises whose requests are for their own profit.... Plaintiff Schwaner's interest in selling insurance does not rise to the level of public interest, and does not justify an invasion of the privacy of government employees." Id. at 6.

In contrast to the insurance salesperson in Schwaner, plaintiff does not intend to use the requested information for its own profit, but instead has demonstrated that it plans to use the information for a purpose relating to a significant public interest. See Founding Church of Scientology, 721 F.2d at 830 n. 4 (stating that "given the presumption favoring disclosure expressed in FOIA, a reasonably low threshold should be maintained for determining when withheld administrative material relates to significant public interests"). Plaintiff, a nonprofit organization formed to promote the interests of retiring and retired officers of the military, intends to use the requested names and addresses solely for the purpose of notifying retired and retiring officers of the military of its existence. Plaintiff promotes the interests of its members, namely retiring and retired officers of the military and their spouses, by lobbying and testifying on legislation in which members have an interest, keeping members informed of government activities affecting them, and assisting members in obtaining benefits to which they are entitled.

Many of these services benefit not only the Association's members, but also the military personnel and the public in general. For instance, by lobbying and testifying on proposed and pending legislation, the Association provides information to Congress and helps to insure that Congress is apprised of the interests and needs of a significant segment of the public which its actions will affect.

Disabled Officers' Association v. Rumsfeld, 428 F.Supp. 454, 458 (D.D.C.1977).

In view of the fact that the information plaintiff is seeking is related to a substantial public interest, the Court is not in a position to consider defendants' claim that the processing of plaintiff's request will be administratively burdensome and expensive. See Rose, 425 U.S. at 369-70, 96 S.Ct. at 1603 ("the...